Opinion of Advocate General Hogan delivered on 11 March 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:198
• Celex Number: 62019CC0001
• Court: Court of Justice (European Union)
• Date: 11 March 2021

Provisional text

OPINION OF ADVOCATE GENERAL

HOGAN

delivered on 11 March 2021(1)

Opinion procedure 1/19

Initiated following a request made by the European Parliament

(Request for an Opinion under Article 218(11) TFEU – Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) – Accession of the Union – External competences of the Union – Appropriate legal bases – Article 78(2) TFEU – Article 82(2) TFEU – Article 83(1) TFEU – Article 84 TFEU – Splitting of signature and conclusion decisions into two according to the applicable legal bases – Compatibility with the EU and FEU Treaties – Practice of ‘common accord’ – Compatibility with the EU and FEU Treaties – Admissibility of the request for an Opinion)

I. Introduction

1. The recent case-law of this Court provides ample evidence that the relationship between the Member States and the Union in respect of the conclusion of international agreements which bind both parties is apt to present some of the most difficult and complex questions of European Union law. The delineation of the respective competences of the Member States and the Union (and their interaction with each other) invariably involves difficult questions of characterisation, often requiring a detailed and minute analysis of an international agreement which has not always been drafted with the subtle complexities of the European Union’s institutional architecture (and its division of competences) in mind.

2. This, unfortunately, is also true of the international agreement – namely, the Convention on preventing and combating violence against women and domestic violence was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011 (‘the Istanbul Convention’) – which is the subject matter of the present request for an Opinion pursuant to the provisions of Article 218(11) TFEU. While that convention seeks to advance the noble and desirable goal of combating violence against women and children, the question of whether the conclusion of that particular convention would be compatible with the EU Treaties presents complex legal questions of some novelty which must naturally be examined from a legal perspective in a detached and dispassionate manner. The issue arises in the following way.

II. The background to the Istanbul Convention

3. In 1979, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination against Women (‘the CEDAW’). That convention was supplemented by recommendations drawn up by the CEDAW Committee, including General Recommendation No 19 (1992) on Violence against women, which in turn was updated by General Recommendation No 35 on gender-based violence against women (2017). Those recommendations specify that gender-based violence constitutes discrimination within the meaning of the CEDAW.

4. The Council of Europe, in a recommendation addressed to the members of that organisation, proposed for the first time in Europe a comprehensive strategy for the prevention of violence against women and the protection of victims in all Council of Europe Member States.

5. In December 2008, the Council of Europe set up a committee of experts, called the Group of Experts on Action against Violence against Women and Domestic Violence (‘the Grevio’). That body, composed of representatives of the governments of Council of Europe Member States, was charged with the task of drawing up one or more binding legal instruments ‘to prevent and combat domestic violence, including specific forms of violence against women, other forms of violence against women, and to protect and support the victims of such violence and prosecute the perpetrators’.

6. The Grevio met nine times and finalised the text of the draft Convention in December 2010. The Union did not participate in the negotiations. (2)

7. The Convention on preventing and combating violence against women and domestic violence was adopted by the Committee of Ministers of the Council of Europe on 7 April 2011 (‘the Istanbul Convention’). It was opened for signature on 11 May 2011, on the occasion of the 121st Session of the Committee of Ministers in Istanbul. (3)

8. On 5 and 6 June 2014, the Council of the European Union, in its Justice and Home Affairs configuration, adopted conclusions inviting the Member States to sign, conclude and implement that convention.

9. The Commission subsequently submitted to the Council of the European Union on 4 March 2016 a proposal for a Council Decision on the signing of the Istanbul Convention on behalf of the European Union. The proposal specifies that the conclusion of that convention falls under both the competences of the Union and the Member States. Regarding the Union, the Commission’s proposal provided for the signature of the Istanbul Convention by means of a single decision based on Articles 82(2) and 84 TFEU.

10. Together with that proposal for a Council decision authorising the signature, on behalf of the Union, of the Istanbul Convention, the Commission submitted to the Council a proposal for a single Council decision to authorise the conclusion, on behalf of the Union, of that convention. The legal basis proposed by the Commission was the same as that set out in the Commission’s proposal on the signature, that is to say, it was also based on Articles 82(2) and 84 TFEU.

11. During the discussions on the draft decision in the Council’s preparatory bodies, it emerged that the conclusion of the Istanbul Convention by the Union covering certain areas proposed by the Commission would not obtain the support of the required qualified majority of the members of the Council. It was therefore decided to reduce the scope of the Union’s proposed conclusion of the Istanbul Convention simply to those competences which were considered by those preparatory bodies as falling within the exclusive competence of the Union. Consequently, the legal bases of the proposal were amended by deleting the reference to Article 84 TFEU and by adding Articles 83(1) and 78(2) TFEU to Article 82(2) TFEU. It was also decided to split the Commission’s proposal for a Council decision to sign the Istanbul Convention into two parts and to adopt two decisions in order to take account of the particular positions of Ireland and the United Kingdom as envisaged by Protocol No 21 annexed to the TEU and the TFEU.

12. Those changes, made at the Committee of Permanent Representatives (Coreper) meeting on 26 April 2017, were approved by the Commission.

13. On 11 May 2017, the Council adopted two separate decisions relating to the signing of the Istanbul Convention, namely:

– Council Decision (EU) 2017/865 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters (OJ 2017 L 131, p. 11). That decision mentions as substantive legal bases Articles 82(2) and 83(1) TFEU;

– Council Decision (EU) 2017/866 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to asylum and non-refoulement (OJ 2017 L 131, p. 13). That decision indicates Article 78(2) TFEU as a substantive legal basis.

14. Recitals 5 to 7 of both decisions state that:

‘(5) Both the Union and its Member States have competence in the fields covered by the [Istanbul] Convention.

(6) the [Istanbul] Convention should be signed on behalf of the Union as regards matters falling within the competence of the Union in so far as the [Istanbul] Convention may affect common rules or alter their scope. This applies, in particular, to certain provisions of the [Istanbul] Convention relating to judicial cooperation in criminal matters and to the provisions of the [Istanbul] Convention relating to asylum and non-refoulement. The Member States retain their competence insofar as the [Istanbul] Convention does not affect common rules or alter the scope thereof.

(7) The Union also has exclusive competence to accept the obligations set out in the [Istanbul] Convention with respect to its own institutions and public administration.’

15. According to recital 10 of Decision 2017/865, ‘Ireland and the United Kingdom are bound by [Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ 2011 L 101, p. 1) and Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ 2011 L 335, p. 1)] and are therefore taking part in the adoption of this Decision’.

16. According to recital 10 of Decision 2017/866, ‘in accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Decision and are not bound by it or subject to its application’.

17. Recital 11 of both decisions states that, ‘in accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application’.

18. In accordance with the above two decisions on the signature of the Istanbul Convention, that convention was signed on behalf of the Union on 13 June 2017.(4) However, no decision was adopted on the conclusion of the Istanbul Convention.

19. On 9 July 2019, the European Parliament requested, in accordance with...